Jackson-Hazard Telephone Co. v. Holliday's Adm'r

• Decision Date: 14 April 1911
• Parties: JACKSON-HAZARD TELEPHONE CO. v. HOLLIDAY'S ADM'R.
• Court: Kentucky Court of Appeals

136 S.W. 135

143 Ky. 149

JACKSON-HAZARD TELEPHONE CO. v. HOLLIDAY'S ADM'R.

Court of Appeals of Kentucky.

April 14, 1911

Appeal from Circuit Court, Perry County.

Action by E. H. Holliday's administrator against the Jackson-Hazard Telephone Company. Judgment for plaintiff, and defendant appeals. Reversed, and new trial directed.

Bailey P. Wootton, Jesse Morgan, J. G. Begley, and Greene, Van Winkle & School-field, for appellant.

Hazelrigg & Hazelrigg and E. E. Hogg, for appellee.

CARROLL J.

A team of mules attached to the wagon in which E. H. Holliday was riding on his way home from the town of Hazard ran off causing the wagon to collide with one of appellant telephone company's poles located on the side of the road. As a result of the collision he was thrown from the wagon and instantly killed. To recover damages for his death, his administrator brought this action, alleging that the telephone company had negligently and without right erected and maintained in the public highway a pole which was an obstruction to the travel thereon and interfered with the use of the road by the public. Upon a trial before a jury damages were assessed in favor of the administrator, and the company appeals.

As we have reached the conclusion that the jury should have been instructed as requested by counsel for the company to return a verdict in its favor, it will not be necessary to review the other assignments of error.

There is no record evidence of the width of the road at the place where the accident occurred, but, as a number of witnesses testified that "it was a 15-foot road," we may assume that it was this width. It may also be appropriately stated at this point that in 1901 the fiscal court of Perry county granted to the appellant company the right to erect its poles along the public road on which the deceased was traveling; the order of court reciting that the company "shall have the full, free and exclusive use of all of said public road that is now or may hereafter be opened along said way for operating, controlling and using said telephone line along said road and may erect all poles and wires upon and along said road that may be necessary to erect, carry on and operate said line or lines. *** In erecting and operating said line or lines it shall so place the poles and run the wires that they will not interfere with the travel of the public along said road." Soon thereafter a pole was erected at the place where it stood when the accident happened. [] That the fiscal court having as it did, under section 4306 of the Kentucky Statutes (page 5439 Russell's St.) The control and supervision of the public roads of the county, had authority before the enactment of section 4679b of the Kentucky Statutes (sections 2521, 2522, Russell's St.) to grant the company the right to erect its poles along this road in the absence of a statute expressly giving the court such authority is, we think, settled by the case of Cumberland Telephone &amp Telegraph Company v. Avritt, 120 Ky. 34, 85 S.W. 204, 27 Ky. Law Rep. 394. Therefore in erecting and maintaining its poles along the road the company was not a trespasser. It had the right to erect them in such places as would not interfere with or obstruct the reasonable use of the road by the traveling public. Although, as stated, the record does not show the width of the road as laid out by public authority or that the pole with which the wagon collided was erected in the road as established by the county or fiscal court of Perry county, we will treat ...